Wiley v. State, 2002-DR-01727-SCT.

• Decision Date: 17 April 2003
• Docket Number: No. 2002-DR-01727-SCT.,2002-DR-01727-SCT.
• Citation: 842 So.2d 1280
• Parties: William L. WILEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

842 So.2d 1280

William L. WILEY v. STATE of Mississippi.

No. 2002-DR-01727-SCT.

Supreme Court of Mississippi.

April 17, 2003.

Robert B. McDuff, Jackson, James McLaughlin, Mark E. Feldman, Timothy C. Hester, Washington, DC, for appellant.

Office of the Attorney General by Marvin L. White, Jr., for appellee.

EN BANC.

EASLEY, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶ 1. William L. Wiley (Wiley) was charged with capital murder in a DeSoto County robbery that left store owner J.B. Turner (Turner) dead and his daughter seriously injured as well as blind. Wiley laid in wait for some time outside the store for Turner and his daughter and then shot and robbed them as they were closing the store. The sawed-off shotgun used in the murder was traced to Wiley, who was arrested and subsequently confessed. Wiley was tried, convicted and sentenced to death in 1982.

¶ 2. On direct appeal his conviction was affirmed by this Court, but the case was remanded for re-sentencing because of comments made by the prosecutor regarding appellate review. Wiley v. State, 449 So.2d 756 (Miss.1984). Wiley was again sentenced to death in 1984, and this Court affirmed the case. Wiley v. State, 484 So.2d 339 (Miss.1986). His petition for rehearing was denied by this Court as was his petition for a writ of certiorari to the United States Supreme Court. Wiley v. Mississippi, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278, reh'g denied, 479 U.S. 999, 107 S.Ct. 604, 93 L.Ed.2d 604 (1986). Thereafter, Wiley filed a petition for post-conviction relief (PCR) that was denied by this Court. Wiley v. State, 517 So.2d 1373 (Miss.1987). His motion for rehearing was denied, and again the United States Supreme Court declined review of the case. Wiley v. Mississippi, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 610, reh'g denied, 487 U.S. 1246, 109 S.Ct. 6, 101 L.Ed.2d 957 (1988).

¶ 3. Wiley then filed a petition for a writ of habeas corpus that was denied by the United States District Court via unpublished opinion. He appealed to the United States Court of Appeals for the Fifth Circuit which held that Wiley's death sentence was improper because the sentencing jury was improperly instructed as to the "especially heinous, atrocious or cruel" aggravating circumstance. Wiley v. Puckett, 969 F.2d 86 (5th Cir.1992). This Court remanded for a new sentencing hearing. Wiley v. State, 635 So.2d 802 (Miss.1993). In 1995, Wiley was again sentenced to death. Wiley appealed, and this Court affirmed the case. Wiley v. State, 691 So.2d 959 (Miss.1997),reh'g denied, 693 So.2d 384 (Miss.1997) (motion for substitution of counsel granted), cert. denied, Wiley v. Mississippi, 522 U.S. 886, 118 S.Ct. 219, 139 L.Ed.2d 153 (1997).

¶ 4. Also in 1997, Wiley filed a pro se motion to stay execution and to appoint an attorney in the United States District Court. The district court denied the motion in an unpublished order. He appealed to the Fifth Circuit, which entered an unpublished order staying the execution and remanding the case to the district court. On January 16, 1998, the district court appointed Thomas Levidiotis (Levidiotis) as counsel and ordered the habeas petition be filed within sixty (60) days. Shortly thereafter, Robert McDuff (McDuff), present counsel, filed a motion to vacate the appointment of Levidiotis and substitute himself as counsel without payment which was granted by the district court.

¶ 5. McDuff and Timothy Hester, Brian Miller and Anthony Picarello, Jr., of the Washington, D.C., firm of Covington & Burling, then filed a motion for post-conviction relief on Wiley's behalf that was denied by this Court in June 1999. Wiley v. State, 750 So.2d 1193 (Miss.1999). His motion for rehearing was denied, and the United States Supreme Court denied certiorari. Wiley v. Mississippi, 530 U.S. 1275, 120 S.Ct. 2742, 147 L.Ed.2d 1007 (2000). Also in June 1999, McDuff and counsel filed a motion for appointment of compensated counsel and funding for litigation expenses, but it was denied by this Court in January 2000. Wiley's most recent petition for habeas corpus filed in the United States District Court is apparently still pending. Subsequently, he filed the present Application for Leave to file Motion to Vacate Death Sentence.

¶ 6. Wiley is seeking collateral review of the denial of his motion for appointment of compensated counsel and litigation funding, and he is asking for leave to present new claims of ineffective assistance of counsel. We find that Wiley's claims are without merit, barred by the doctrine of res judicata, procedurally barred as a successive writ under Miss.Code Ann. § 99-39-27(9) (Supp.2002), and time barred pursuant to Miss.Code Ann. § 99-39-5(2). Accordingly, this motion is denied.

ANALYSIS

¶ 7. As Wiley presents substantially similar arguments in both of the first two issues he raises, they are combined for discussion.

I. Whether the Mississippi Supreme Court's Denial of Funds for an Investigation Violated Wiley's Rights Under Mississippi Law and the Eighth and Fourteenth Amendments to the United States Constitution.

II. Whether the Denial of Funding Independently Violated Wiley's Fourteenth Amendment Right to Due Process.

¶ 8. Wiley asserts that his claims are not procedurally barred and meet the requirements for successive post-conviction relief motions under Miss.Code Ann. § 99-39-23(6), which states in relevant part:

The order as provided in subsection (5) of this section or any order dismissing the prisoner's motion or otherwise denying relief under this chapter is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this chapter.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

¶ 9. Wiley also cites Miss.Code Ann. § 99-39-27(9), which reiterates the language above with reference to an application for leave to proceed in the trial court, and Miss.Code Ann. § 99-39-5(1)(a), which states:

(1) Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims:

(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;

. . .

(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

¶ 10. The State counters that Wiley's claims are indeed barred. We agree. Wiley has not demonstrated compliance with either exception of an intervening decision or new evidence, nor has he shown that his conviction or sentence is a violation of any constitutional right. Additionally, the State asserts that absent procedural bars Wiley failed to comply with the three-year statute of limitations pursuant to Miss. Code Ann. § 99-39-5(2) as set out at the time of his conviction. The statute was amended in 2000 to provide an exception for capital cases requiring post-conviction filings to be made within one (1) year after conviction. However, a discussion of the merits is included nonetheless.

¶ 11. As stated previously, Wiley's present counsel, McDuff, filed a motion to vacate the appointment of Levidiotis and substitute himself as counsel "without payment" in the United States District Court in 1998. Present counsel also represented Wiley on his last PCR in this Court, which was denied June 3, 1999. The motion for rehearing was denied February 3, 2000. Wiley centers much of his argument around Jackson v. State, 732 So.2d 187 (Miss.1999), which allowed appointment of counsel and consideration of reasonable litigation expenses. However, the motion in Jackson was granted January 28, 1999, which was prior to the denial of both Wiley's PCR and his motion for rehearing. Wiley has already raised the argument of this "intervening decision" with this Court via his motion for rehearing and separate motion for appointment of counsel and for litigation expenses; now he is essentially seeking a rehearing of that motion under the guise of a post-conviction claim by combining it with a "new" claim of ineffective assistance of counsel. The State asserts that M.R.A.P. 27(h) prohibits such a rehearing. We agree.

¶ 12. In denying Wiley's prior motion, by order filed February 3, 2000, this Court said:

Wiley has had the benefit of pro bono counsel during his post-conviction proceedings, and now asks this Court to remand his case to the DeSoto County Circuit Court for appointment of counsel and determination of compensation under Jackson v. State, 732 So.2d 187 (Miss.1999). After due consideration the Court finds that the motion is not well taken and should be denied.

Wiley was at that time and continues to be represented by McDuff and various members of Covington & Burling.

¶ 13. Wiley asserts that he is entitled to funds for "investigation, analysis, and presentation of facts outside of the appellate record," under Mississippi law as set out in Jackson despite that the right to counsel in post-conviction proceedings is discretionary. He relies on this Court's comments regarding Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), in his argument that he is entitled to litigation expenses and compensated counsel. The United States Supreme Court found in Murray that there was no constitutional right to counsel provided by the state in post-conviction proceedings. See also Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). As Mur...